Friday, January 29, 2016

In my Verdict column for this week, I discuss a phenomenon in which pro-life advocates have been providing support in custody battles over frozen embryos to the side of the battles that seeks implantation (and thus a full "life") for the embryos. My column contends that unlike in abortion-related battles, there is something very clean and uncontroversial about a fight for frozen embryos on pro-life grounds: if one truly believes that a one-celled zygote is as entitled to live as a newborn baby, then a custody battle over an embryo in which one side seeks to kill the embryo and the other seeks to give it life through implantation is a ridiculously easy battle. Of course the side wanting implantation ought to win, because the "best interests of the child" (the appropriate standard if one is in fact dealing with a child) lies with the parent who will provide the child with a safe and nurturing environment for growth and development rather than a garbage pail. As I mention in the column, referencing my other writing, I do not share the view that an embryo has an interest in implantation, but that is because I reject the fundamental premise of the pro-life vision of conception as endowing a conceptus with rights. If I accepted the premise, however, I would share the view of frozen embryo disputes, because there is no competing right to bodily integrity weighing on the other side, as there is in abortion disputes.

Similarly, I have spoken in other contexts about the viability line in abortion jurisprudence as a sensible one, despite the Supreme Court's failure to adequately defend it. At viability, I propose, a woman's bodily integrity interest may be fully protected (at least in theory) without terminating the life of the fetus, by safely removing the viable fetus from the woman's body. Prior to viability, by contrast, a woman's right to terminate her internal invasion may be accomplished only at the collateral cost of killing the fetus, so the right to abortion may, for that reason, appear to grant an entitlement on the part of a woman to procure the death of a fetus (even a sentient fetus). Viability, then, by severing bodily integrity from the need to kill a fetus, clarifies the nature and scope of the right at issue -- it is one about bodily integrity and not an interest in terminating the life of a fetus.

In the frozen embryo context, we have the possibility of another viability line, this one at an extremely early stage of embryonic development rather than at a relatively late stage of fetal progression. As in the later viability situation, someone arguing on behalf of a frozen embryo can say that the embryo is "viable" in the sense that it can survive without the conscription of an unwilling womb in its service. Indeed, it can survive for some period of time without any womb (although it will eventually decay if it is not defrosted and implanted). The viability of a frozen embryo is distinct from the viability of a late-term fetus in some ways, of course -- the latter can live without being inside any womb and the latter has also reached a developmental stage at which many more people would regard it as having rights (perhaps because it has by now become sentient). Still, the viability line can work for the pro-life advocate in some of the same ways in both contexts: the pro-life advocate can say, honestly, that if the abortion right is truly about bodily integrity rather than an interest in procuring the death of an unwanted embryo or fetus, then the frozen embryo should be treated with respect and accordingly be bestowed on the party that would implant that embryo. The frozen embryo is accordingly viable because it can procure what it needs to survive without imposing on anyone's bodily integrity, and as such, it may perhaps be entitled to do so. In any event, if it is not entitled to implantation in a willing woman, that must be because we directly challenge and reject the idea that it is indeed a rights-bearing entity. That must be, in other words, because we believe that viability is relevant only late in pregnancy, when an entitled entity has already developed, perhaps because that entity has become sentient, as Michael Dorf and I argue in our new book, Beating Hearts: Abortion and Animal Rights.

Thursday, January 28, 2016

Because of a one-off scheduling change, I have published two new Verdict columns this week. I will discuss and expand upon today's new column (which focuses on labor unions) in a Dorf on Law post next Tuesday. Today's post builds upon my Verdict column that was published two days ago, "Republicans Should Learn From Flint That Governing on the Cheap Costs Too Much," in which I respond to the penny-wise-pound-psychotic disaster in Flint, Michigan, where a Republican governor and state legislature have inflicted incalculable damage on the poor and mostly minority residents of a city of 100,000 people.

Once one emotionally processes the utter depravity of what happened in Flint, the story can be seen as an almost perfect example of what economists like me have been saying forever: The government has an important role to play in every economy, budget cuts can be disastrous, infrastructure spending is essential, investing in people pays off (and harming them costs too much), what happens to other people matters to all people, and on and on. Were it not for the human consequences of what is still happening in Flint, most economists would be able to view the situation there almost with gratitude, simply because that one example captures so many important lessons.

Tuesday's Verdict column discusses many of those lessons in some detail. In this post, however, I want to take a different angle on the Flint story, by placing it in the context of a few other, seemingly unrelated big news stories of the past few months. The larger questions are: Does what happened in Flint "change everything"? And if so, why does every big event not similarly change everything?

Some readers might recall the mass shooting at Umpqua Community College in Oregon last October -- although, given that it has been followed by so many more mass shootings, people could be forgiven if they have already forgotten about that particular tragedy. (The body count in that one was 9.) Shortly thereafter, Jeb Bush (who is, contrary to all evidence, still a presidential candidate) stepped into what his father would call "deep doodoo" by famously saying about the Oregon shooting, "Stuff happens." The initial reaction to his phrasing was, appropriately enough, widespread revulsion. People might not agree on the appropriate response to gun violence, but most people do respond badly to what appears to be callousness.

Bush reportedly refused to back down, saying that he had said what he meant, and then sarcastically saying: "'Things' happen all the time. 'Things,' is that better?" No, that was not better, but he then actually did explain his point in a way that was not crazy. Within a mire of classically mangled Bushian locution, he managed to say that "the impulse is to pass a law that deals with that unique event and the
cumulative effect of this is in some cases, you don’t solve the problem
by passing the law, and you’re imposing [burdens] on large numbers of people." Boiled down to its essence, Bush's explanation was that every new
piece of bad news does not necessarily call for a policy change, or even
a reassessment of how we decide whether to make policy changes.

The technical term for this is "Bayesian updating," but the idea is very simple. Every time we get new information -- if, to use one of Bush's examples from that same interview, a child drowns in a swimming pool -- we should update what we think about the probability of children drowning in swimming pools. Maybe that update will not change much, or maybe it will change things a lot. When the new information seems to change what we know about the world in a meaningful way, we should change our policies in response.

Bush was not wrong to say that "in some cases, you don’t solve the problem by passing the law," but it is not clear whether he meant that the law is not going to be effective because it is presumed to be poorly designed (which, given his anti-government ideology, might well be what he thinks) or that the new law is simply an overreaction to a problem that has some baseline probability that is not worth reducing below a certain level. I will assume that he meant the latter, based on his overall comments. In that light, he is simply saying something like what older parents have been saying to new parents for generations: You can't protect your kids from everything, so accept that life is full of risks that you cannot completely mitigate without harming your kids in other ways.

All of that is fair enough, which is why it was especially galling when Bush joined in the insane overreactions after the Paris terrorist attacks the following month. Like all of his competitors in the Republican field, Bush engaged in just the kind of "everything is different now" reasoning that he decried after the Oregon shooting. If only he had remembered the statement that his campaign issued after he was attacked for his "stuff happens" comment: "Taking shameless advantage of a horrific tragedy is wrong and only serves to prey on people's emotions." Like, maybe, telling people that we should only let Christian refugees into the U.S.?

Other than rank hypocrisy, however, what else is going on here? As it happens, I made something like Bush's argument at much greater length in a Verdict column (here) and a series of posts on this blog (here, here, and here) after the Paris attacks. I argued that those attacks (and those in Beirut at around the same time, although those have not penetrated the public consciousness in the same way) did not really change anything and that we already knew that we were living in a world where that kind of thing has been possible. Moreover, I argued that we already had in place the basic decision-making infrastructure that would allow the government to update those policies in sensible ways and that avoid overreaction.

In short, I have on a case-by-case basis made the following arguments: (1) Mass shootings call for changes in the way we deal with guns, but (2) the Paris attacks should not change the way we deal with possible acts of terrorism, but (3) the Flint situation shows why we should change our government spending policies. Is there a way to make those assessments fit into a larger, consistent narrative?

The answer, I think, has to do with whether a particular event shows that we are doing something systematically wrong, and that there are plausible changes in policy that would address that error without unreasonable tradeoffs. Bush thinks that the gun story is simple, because he takes the absolute position that every possible limitation on guns is infinitely unacceptable. I think, instead, that the dreadful list of mass shootings suggests that we have been consistently failing to respond to a crisis that is only showing signs of getting worse. Even though there is probably no way to reduce gun deaths to zero, experience in both the U.S. and abroad shows that it can be significantly reduced. To use another of Bush's examples, even though we tolerate more than 30,000 automobile deaths per year, that does not mean that we should tolerate far more than that by repealing every auto safety law and regulation that has been passed in the last fifty years (or by refusing even to consider adopting new ones).

The Paris attacks, by contrast, simply seem to be one of the sadly inevitable -- but thankfully rare -- consequences of the current probabilities in the world. There are (due in large part to another Bush's disastrous mistakes) more people in the world who are willing to kill westerners, and they have access to more weaponry than ever. (We do not even need to get into the connection between guns and jihadist violence in the San Bernardino attacks.) We already have invested huge sums in both military and law-enforcement resources to prevent and respond to the non-zero number of attacks that will surely happen. We could do more, but nothing on offer from Jeb Bush or anyone else shows any promise of actually changing anything, much less doing so at an acceptable cost.

Finally, the Flint story is another example of an ongoing disaster that we should already have been trying to change, to everyone's benefit, but which only a dramatic story like lead-poisoned children can bring into focus. Reports from national groups (including nonpartisan organizations like the American Society of Civil Engineers) have been saying for years that there is a problem with the nation's infrastructure and that fixing it would be a win-win for the country.

To return to Jeb Bush's "stuff happens" comment, his campaign's response also included this: "It is sad and beyond craven that liberal Democrats, aided and abetted by
some in the national media, would dishonestly take Governor Bush’s
comments out of context in a cheap attempt to advance their political
agenda in the wake of a tragedy." Yes, if people are merely responding to a tragedy by laying blame and offering nothing that would improve the situation, that is beyond craven. But when people are responding to yet another example of an ongoing tragedy that can readily be mitigated, that is responsible governance.

Wednesday, January 27, 2016

My latest Verdict column discusses last week's Supreme Court oral argument in Heffernan v. Paterson. Heffernan, a police officer, was demoted because his supervisors mistakenly believed that he was engaged in political activity favoring the mayoral challenger, when in fact he was simply picking up a sign for his mother. The city of Paterson argues that in order for him to state a valid claim under the First Amendment he must allege both that: (1) he was engaged in protected speech or association; and (2) that he was subject to an adverse employment decision because of government hostility to speech or association. Because Heffernan only alleges (2) but not (1), the city says he loses. Heffernan--supported by the federal government as amicus curiae on this point--argues that only (2) is necessary for a successful free speech claim.

My column does not reach a firm conclusion on the bottom line, but I am highly critical of a distinction that the city, through lawyer and SCOTUSblog founder Tom Goldstein, tries to draw. The city says that a free speech claimant can prevail in a (2)-only case if, but only if, he brings an overbreadth claim challenging some rule, such as a statute, regulation, or formal policy, that is applied to him. Because Heffernan is challenging a one-time decision, Goldstein contends, he cannot bring an overbreadth challenge, and therefore he must show that his own free speech or association rights were violated. Picking up on a line of questioning by Justice Kagan, I suggest that this argument rests on a dubious distinction between rules and reasons. I cite a very insightful argument by Fred Schauer explaining that reason-motivated decision making is a kind of rule-driven decision making.

Accordingly, I conclude that the burden should be on the city to explain why this one kind of rule-driven decision making should be treated differently from other kinds of rule-driven decision making. The government's best argument for such different treatment goes like this: The purpose of the First Amendment overbreadth doctrine is to address the chilling effect of overbroad laws on protected speech. It allows people whose own speech is unprotected to challenge an overbroad rule because of the risk that people whose speech is protected will simply self-censor, i.e., their speech will be chilled. The overbreadth doctrine is thus a kind of exception to the prudential rule barring third-party claims. It makes sense where the overbroad rule appears in an express statute or otherwise. However, a one-time decision to demote (or fire or refuse to hire) someone for a bad reason does not chill others' protected speech, and therefore should not be the occasion for an overbreadth challenge.
To my mind, that argument is wrong in two ways. First, as Heffernan's attorney argued, an ostensibly one-time decision can in fact have a chilling effect. Where the government's illicit reason for the adverse employment decision is generally known, as it was here, it will have the same chilling effect as an express rule.

Second, the foregoing italicized argument assumes that overbreadth challenges are permitted only because of the chilling effect phenomenon. As some of my own recent empirical scholarship accepts, the chilling effect is one important basis for overbreadth doctrine, but there are others. For example, in an important 1981 article in the Supreme Court Review (not available free online) Henry Monaghan argued that the overbreadth doctrine implements the principle that everyone has a right to be judged by a valid rule of law--a proposition which, if true, would appear to have the corollary that everyone has a right to be assessed by government acting with permissible purposes. More recently, Richard Fallon has argued that facial attacks on laws for reasons other than chilling effects are quite common. In my own conceptual work, I have also expressed skepticism about how central the chilling effect is to overbreadth-type litigation.

None of that is to say that there cannot be categories of cases that succeed only if the claimant alleges both (1) and (2). But the relation between rights and rules is complicated and, as I explained in a paper in Legal Theory in 2000, quite heterogeneous. There are cases in which only (2) is required. There are cases in which both (1) and (2) are required. And there are cases in which only (1) is required. For example, in the closely related context of religious claims, the Religious Freedom Restoration Act (RFRA) and parallel state RFRAs allow claimants to challenge neutral laws of general applicability--i.e., laws that do not have the (2)-flaw--so long as the claimants assert that they were engaged in protected conduct--i.e., so long as they make an allegation of (1).

It is fair to say that the Supreme Court case law sorting out the relation between rights and rules is at best confused and arguably incoherent. There is a lot of scholarship out there that tries to impose order on the cases, including works by Monaghan, by Fallon, by yours truly, by Nick Rosenkranz, and by others. For the most part, the Court has ignored the scholarship. Perhaps Heffernan will be an exception, because one of the leading articles on the relation between free speech and government purpose was written by a law professor named Elena Kagan. Based on the oral argument, however, it looks like that work will likely be invoked in the dissent.

Tuesday, January 26, 2016

Frequent readers of Dorf on Law will not be surprised to learn that I am working on a series of articles about the past, present, and future of Social Security. Tomorrow, I will be presenting a draft of the first of those papers, entitled Social Security Is Fair to All Generations, at SMU's Dedman School of Law. I will soon be posting a draft of that paper to SSRN. When I do, I will surely write a Dorf on Law post to describe that article in more detail than I will provide here. For now, I want to discuss one argument that I recently added to the paper. I do so mostly as a way of thinking out loud, and in particular to see whether the argument deserves more than a side comment in a footnote. I suspect that it does, but I can be convinced either way.

The big empirical question that I address in the paper is whether the Baby Boom generation "saved" for its own retirement. In particular, the Social Security system is often disparaged for not actually saving anything, whereas many people wrongly think that individual deposit accounts are saved in some more meaningful way. As I noted in a Dorf on Law post last August, however, deposit accounts are not really saved, either. That is, the money does not sit in vaults but is immediately recycled by financial firms into loans that are then spent nearly immediately. There is nothing in those private accounts, other than promises.

In that sense, Social Security's Trust Fund does not deserve to be mocked any more than a stock portfolio or a plain-vanilla savings account does. They are all accounting fictions, representing obligations that are callable in various ways in the future. What the trust fund does represent is decades of excess payments of taxes by Baby Boomers, who were forced by the 1983 Social Security act to pay trillions more in taxes than were needed to cover the system's benefits during the following three or four decades.

What happened to that extra money? Using the most mainstream theory of macroeconomics available, I argue that the excess taxes increased national saving, which is the sum of private saving and government saving -- or, in most years, the difference between private saving and government borrowing. With the government taking in more money than it otherwise would have in the absence of Social Security's surpluses, it can borrow less, leaving more money to be invested by private firms. Readers who remember sitting through Econ 102 might recall that this is an application of the concept of "crowding out."

The standard cynical retort is that the Trust Fund was not saved because the government borrowed more money in the rest of its budget. That, however, misses the point, because what we care about is whether the government borrowed less than it otherwise would have because of Social Security's surpluses. If the government was otherwise going to borrow $400 billion, but a $100 billion Social Security surplus allows the government to borrow only $300 billion, that is $100 billion more in private investment that Social Security's surplus brought into existence. It was "saved" in the sense that it added to the economy's productive capacity.

A more sophisticated cynical retort is that the Social Security surplus was spent not in the sense that the government did not put the money into a savings account, but instead that it was spent by politicians who increased the government's other borrowing in the knowledge that there would be a Social Security surplus. Continuing the example above, this would mean that the government would have only borrowed $300 billion even without Social Security's extra money, and the availability of the extra $100 billion allowed an imprudent Congress to finance supposedly wasteful government consumption spending that benefited people during that year. If so, it would be wrong for Baby Boomers then to say that they sacrificed and thus can draw down the Trust Fund during their retirements.

In this post, I will not recite the reasons why I argue that that more sophisticated cynical retort is empirically implausible. But what if my empirical assessment were wrong? That would mean that the Baby Boomers (at least, as imperfectly represented by Congress) used the Social Security system to hoodwink their children and grandchildren. Members of Congress would apparently have said something (off the record) like this: "I think that $300 billion is as much as we should borrow this year, but we can get an extra $100 billion in fun money for us to spend like drunken sailors, simply by pretending to build up the Trust Fund."

The result of such thinking, even if it were true, is actually not as pernicious as it might sound, because it would simply mean that Congress set up a transfer scheme within the Baby Boom generation, using current taxes to fund current spending. Still, it would be pertinent to the question of equity across generations, because it would mean that Congress has already spent the Trust Fund, and everything from this point forward is a matter of reducing future living standards for post-Boomers.

The usual conservative-versus-liberal debate regarding Social Security centers on the preferred mechanism for financing retirement. Conservatives prefer individual accounts, liberals prefer pay-as-you-go financing. As I argued above, the supposed difference between those two choices evaporates under scrutiny, at least as a macroeconomic matter. There are other reasons why conservatives might still prefer private accounts, but they are simply wrong if they believe that their preferred financing mechanism is more real than the alternative.

Now, finally, I can describe the argument that I recently added to the paper. Suppose that the Baby Boom-era Congresses really did want to find a surreptitious way to use the nation's retirement system to finance wasteful consumption spending, to the detriment of future generations. Suppose counterfactually also that, long ago, we had adopted a system of private accounts rather than Social Security, and that those private accounts in the year in question were also going to grow by a net $100 billion, just as in my example above. Is the presumptively-selfish Congress stymied, simply because the $100 billion is in private accounts rather than in the Social Security Trust Fund?

Definitely not. The Congress in my example above settled on $300 billion as the maximum net amount that it could borrow because, under the standard story, the amount of private savings in that year could not finance any more government borrowing, while still leaving enough money to be borrowed and invested by private firms. Imagine that the amount of total private saving was going to be $1 trillion in that year. Congress would then have said, "We need to leave $700 billion in private saving, which means that we can borrow no more than $300 billion." If there were private accounts rather than Social Security, however, the total pool of private saving would be $100 billion higher, or $1.1 trillion. Congress could then borrow $400 billion, still leaving $700 billion to the private sector.

Is this realistic, as a matter of how Congress was probably thinking? Of course not. One need not, however, believe that any member of Congress would actually think about the problem in that way, either in the real-world situation where Social Security is running a $100 billion surplus, or in the counterfactual world where private retirement accounts are growing by $100 billion in the same year. Yet we do know that Congress does seem to respond to projections about the deficit and the debt, in part by looking at what macroeconomists at CBO and elsewhere say. And the fundamental question in all such analyses is whether the pool of private savings is large enough to finance the projected deficit. That is, among other things, why so many economists worry about low personal savings rates.

Part of the story might have to do with how the mainstream press reports the government's deficit. There has been much tussling over the years about whether the "on-budget" deficit (which excludes Social Security's surplus) should be reported instead of the "consolidated" deficit, which measures the net effect of all government financing. One could argue that, if Congress were only told about the consolidated deficit, that lower number could have lulled even relatively responsible members of Congress into thinking that the government was not spending as much as it was.

Yet if we imagine that Congress is actually not very savvy about accounting, then it becomes more difficult to argue that those same members of Congress are looking at the lower consolidated deficit number and deliberately increasing spending in response. After all, there is no reason to imagine that anyone in Congress was saying, "Man, I really wanted to run a $400 billion deficit this year." Without any baseline to which they would be drawn, it means nothing if the Social Security system's surpluses change the reported deficit number.

Similarly, in the counterfactual world without Social Security, there is no reason to think that members of Congress would have some presumptive belief that $300 billion or $400 billion is the right number. In short, if we drop the idea that Congress is being strategic, then we have to drop that idea under either scenario. If we assume that Congress is savvy and cunning, however, then we have to assume that to be true under both scenarios. And if Congress were truly determined to spend an extra $100 billion in a given year, it would not matter how the retirement system was set up.

Fortunately, as I noted above, the evidence does not support that hyper-cynical view at all. That story, however, will have to await another day.

Monday, January 25, 2016

Regular readers of this blog are undoubtedly by now well aware (indeed, sick of hearing) that we have a book forthcoming on abortion and animal rights. As of today, the book is no longer forthcoming. It's available for purchase at the Columbia University Press website, online retailers including Amazon and Barnes & Noble, and bricks-and-mortar bookstores. (The "official" publication date is March 6, 2016, but the book can be purchased and ships now.)

When we have told people about the book, we have sometimes been met with puzzlement. What do these topics have to do with one another? It's as though we have announced that we wrote a book on apple sauce and windmills.

Beating Hearts connects abortion and animal rights because, as we explain in the Introduction, both the pro-life movement and the animal rights movement challenge conventional understandings about the role that humanity--the fact of belonging to the human species--properly plays in assessments of moral worth. As we write: "people in the pro-life movement regard humanity as a sufficient condition for moral rights; people in the animal rights movement contend that humanity is not a necessary condition for moral rights."

The book also draws connections between the strategic and tactical questions faced by the pro-life and animal rights movements. When are incremental strategies helpful? Do gory images (of mangled fetuses or slaughterhouses) win hearts and minds or merely turn people off? Given the high stakes, how can people in each movement who oppose violence argue against the use of violence? And so forth.

Beating Hearts is an academic book in the sense that we evaluate arguments regardless of where they lead. We try very hard not to be polemical and to state positions with which we disagree fairly. Although the book aims to reconcile animal rights with a pro-choice position on abortion, we credit arguments that aim to show the immorality of abortion of sentient fetuses. We think that if we have done our job well, the book will in places make people who share our bottom line uncomfortable.

We hold out hope that Beating Hearts is not simply an academic book. Our discussion ranges over controversial topics in philosophy, law, sociology, and various other academic disciplines. However, we assume no specialized knowledge of the reader.

If you enjoy what you read from each of us here on the blog, in our Verdict columns, and/or our various academic writings, we now shamelessly urge you to buy the book.

Friday, January 22, 2016

By Eric SegallOn February 11, the
Georgia State University Law Review is hosting a comprehensive symposium on
Supreme Court transparency. The participants will debate cameras in the Court,
recusal practices, ethics requirements, anonymous certiorari votes, and the
absence of any rules governing the Justices' papers. They will also discuss
whether Congress can and should interfere in these issues. Here is a link to the conference.

Members of the judiciary
who will be participating include Justice Willet of the Texas Supreme Court,
Justice Nahmias of the Georgia Supreme Court, Judge Posner of the 7th Circuit (via
Skype) and Judge Dillard of the Georgia Court of Appeals. The media will be
represented by Adam Liptak of the New York Times, Robert Barnes of the
Washington Post and Dahlia Lithwick of SLATE. Academics include, in addition to
yours truly, Erwin Chemerinsky, Eugene Volokh, Vik Amar, Michael Gerhardt,
Sonja West, Nancy Marder, RonNell Anderson Jones, Lauren Sudell Lucas, and Louis Virelli.

There will be significant
disagreements among the participants on all of the transparency issues. C-Span is
considering covering the event and Judge Dillard will be live tweeting the
proceedings at @JudgeDillard. The event is open to
the public but seating is limited.

I am writing the lead
paper for the conference, which covers all of the topics listed above. Below I
provide a brief summary of each topic.

A.
Cameras

Most state judicial systems as well as the Supreme Courts of Canada, Brazil, and the UK allow some
form of televising or live streaming of their proceedings. The Supreme Court of
the United States, of course, prohibits any and all photographic or video
coverage of its oral arguments and decision announcements even though those
sessions are already open to the public. No one will ever be able to see a video of Justice Kennedy announcing that gays and lesbians have equal rights to marriage
or watch the Justices battle with the lawyers and themselves over affirmative
action, abortion, voting rights and other issues of monumental importance.

The Justices claim
that cameras in the Court might alter the nature of the arguments and lead to showboating
and misrepresentation. They also argue that the written transcripts and audio
recordings of the proceedings provide as much transparency as the public needs.

Justices Willett and
Namhias will discuss their court’s experiences with live streaming and cameras
while Professor Marder will argue against the use of cameras in the Supreme
Court.

B.
Ethics and Recusal

The
Justices of the United States Supreme Court are the only federal judges in the
country not bound by a formal ethics code. Federal law
prohibits lower court judges from being the keynote speakers at fund raising
events, from accepting certain gifts, from hearing cases where they or their
spouses have a financial interest, and from presiding over cases where they served
as a lawyer in prior proceedings. In his 2011 year-end report,
Justice Roberts told the country that the Justices use these rules to guide
their behavior but that they are not binding on the Court. The result is that
the Justices are free to engage in off-the-Court activities without any check
and a recusal process that does not require any written response or review by
other judges.

The panelists will
discuss the presence of both liberal and conservative Justices at numerous
political events hosted by a variety of organizations and recusal controversies
where the Justices refused to withdraw from cases despite strong arguments that
their participation was improper (as well as the Justices’ frequent recusal
from cases without any written explanation). The participants will also examine
current bills pending in Congress to address these matters and whether such efforts
are needed and are constitutional.

C. The
Writ of Certiorari

There
are currently no formal constraints on how the Justices decide which cases
they will hear. Supreme Court Rule 10 sets forth "considerations governing" cert grants, but the Rule makes clear that the decision whether to grant or deny cert is committed to the Justices' discretion and that even the factors it lists neither control nor express the full measure of that discretion. The requirement that it takes four votes to hear a case isn’t formalized
anywhere even though it appears to be well-accepted. Additionally, the Justices
do not disclose their individual votes unless they dissent from the
denial of the writ.

My paper argues that the
American people have the right to know how Supreme Court Justices vote over
time on the all-important certiorari questions. Other participants in the symposium
will argue that disclosing which Justices voted to hear which cases would serve
little public good and might actually be confusing to non-lawyers unfamiliar with
the process. We will also discuss the role law clerks play in the certiorari process.

D. The
Justices’ Papers

There
are no rules in place governing the taxpayer-funded official papers
of the Justices. The result is that each Justice decides for himself or herself
under what conditions and time frames their papers are released for study.
Chief Justice’s Burger's papers are still not public, while Justice Souter’s papers are
sealed for fifty years from the date of his retirement, and Justice Brennan
allowed one law professor exclusive access to his papers for almost twenty
years. Justice White and his clerks actually shredded many of his papers, including some related to the landmark Miranda
case.

My paper argues that the
American people deserve better and, if the Justices won’t adopt rules
themselves, Congress should pass a law similar to the Presidential
Records Act which governs the President’s and Vice-President’s papers.
Others will argue that the Justices’ papers belong to them and should
not be subject to formal regulation.

That so much of Trump's fortune was ultimately built on government money is also at odds with his uber-businessman myth. And we do not even need to get into the emptiness of his book The Art of the Deal. (Morsel: Step 7 of his 11-step formula -- "inspired" by Norman Vincent Peale's The Power of Positive Thinking -- is "Get the Word Out." Brilliant.)

Even so, Trump is rich, as he relentlessly reminds his listeners. And if he is rich, he must be smart, right? Because so many other people try to get rich, but only a few dozen become billionaires, Trump must have something that other people lack. Or so he would have us believe, and a lot of people are falling for it.

Recently, I came across on article on Vox, carrying the highly descriptive title: "Donald Trump isn't rich because he's a great investor. He's rich because his dad was rich." The author starts from the well-known fact that Trump's father was rich (again, mostly from government contracts, but I digress.) How rich? The reality of Trump's silver spoon is only partially captured in his absurdly tone-deaf Romneyan declaration: "It has not been easy for me, it has not been easy for me. And you know I
started off in Brooklyn, my father gave me a small loan of a million
dollars." Not easy at all! Trump's defenders would surely say that he might have had access to a million-dollar loan, but at least he turned it into something much bigger. Right?

Well, no. Citing an analysis from the National Journal, the Vox article points out that Trump would still have been a multi-billionaire if he had simply taken his $40 million share of the family inheritance in 1974 and engaged in the most passive investment strategy imaginable, simply buying an index fund and letting it grow. Invested from 1974 onward, he would have ended up with something between $2.3 billion and $3.4 billion, depending upon the assumptions one makes about his investment advisors' fees. Based on standard fees, he would surely have ended up with more than $3 billion. How much is Trump really worth? No one knows, and Trump's proclamations about his wealth are highly suspect, but Bloomberg News guesstimates the number at $2.9 billion and Forbes pegs it at $4.0 billion.

The Vox piece cites further estimates showing that if Trump had become a passive investor in 1982, he would now be worth $6.3 billion, while an early retirement in 1988 would have given him something like $11-$13 billion today. That suggests, I suppose, that Trump might have been a good businessman for about ten or fifteen years, but he's been positively awful since then.

All of that is interesting and politically potent, at least if one imagines that reality has any connection to Trump's political fortunes. The guy's tactics are slimy, and the results are terrible. Who would not want that in a president?

But that Trumpian sense of entitlement is hardly limited to this orange-hued blowhard, even in the political arena. After all, the Republican establishment's favorite family is all about inherited privilege. The two best lines about the senior George Bush -- "He was born with a silver foot in his mouth," and more pointedly, "He was born on third base and thought he hit a triple" -- are all about how the children (and now grandchildren) of the wealthy and powerful think they have skills that they simply lack. Just ask Jeb Bush's speech writers.

I thus found myself ruminating over the broader phenomenon of
wealthy entitlement that Trump merely exaggerates. Even if the typical trust fund kid does not think he should be
president, after all, there is plenty of evidence that people who are
rich merely because they started out rich still believe that they deserve
their wealth. And a lot of people are willing to buy into those myths. What is especially interesting is trust fund babies who become famous, and whose fame then becomes its own excuse for entitlement.

For example, when Paris Hilton (whose great-grandfather started the Hilton Hotels chain) had a short TV reality-show career in the 2000's, she briefly became the Democrats' best argument for the estate tax and a more progressive income tax. Even so, some students told me at the time that they thought she deserved "her money," because at least she was smart or savvy enough to use her advantages well. It did not apparently matter that she was only in a position to be noticed by the tabloid press because she was rich in the first place. She deserved what she had "earned," I was told. Well, at least we can say that she outdid Trump by not actually making herself less rich through her own actions.

In some ways, I think that this might be one of the deepest disconnects between liberals and conservatives. I have spoken with principled libertarians who admit that the genetic lottery, and luck in general, make orthodox conservative anti-redistribution logic difficult to take seriously (even though they still argue that redistribution should be minimized, for other reasons that I find only partially convincing). And there have been plenty of conservatives and successful businesspeople (Andrew Carnegie being one of the more important examples) who view inheritance as a problematic concept. Even so, the broader American conservative trend has been more and more in favor of protecting existing privilege. Donald Trump is merely a crude expression of that trend.

Wednesday, January 20, 2016

by Michael Dorf
As I noted here last week, my most recent Verdict column discusses Cressman v. Thompson, in which the 10th Circuit rejected a compelled-speech objection to the display of what the plaintiff regards as a pantheistic image. I argue in the column that the 10th Circuit erred and I urge the SCOTUS to grant cert and reverse, even as I worry that a too-broad compelled-speech opinion could endanger anti-discrimination law. Here I want to follow up by considering a question about how the state might respond in future cases if Mr. Cressman ultimately wins.

Below is the standard-issue Oklahoma license plate.

When Cressman first approached the state authorities, he sought permission either to cover over the Sacred Rain Arrow image in roughly the left fifth of the plate or to receive a no-added-cost "vanity" plate--by which he actually meant a "special" plate--that would not bear the Rain Arrow image. Accordingly, if Cressman wins at the Supreme Court, it can be argued that what he will win, in addition to any damages and costs, will be the right to have either a free state-issued plate without the Rain Arrow image (like many of the special plates listed here) or an injunction against Oklahoma's enforcement of its law forbidding his obscuring the portion of the standard-issue plate that contains the Rain Arrow image.

Under ordinary principles of remedies, the state would have discretion whether to comply with a ruling in favor of Cressman either by giving hima free state-issued plate without the Rain Arrow image or by granting him the legal right to cover over the Rain Arrow image on the plate. Given the procedural history of the case, it could also be said that Cressman waived the right to insist on one or the other remedy--although the complaint he filed in the District Court included the usual catch-all language that could be construed to include a request for a particular remedy. In any event, I'm going to assume the issue remains live, so that I can explore a question that usually goes unaddressed in cases involving compelled speech.

Suppose Oklahoma decides that it does not want to give Cressman a no-additional-fee special plate, perhaps because the state authorities worry that doing so would encourage other people to claim an objection to the Rain Arrow image as a means of getting a special plate without having to pay for it. Because a right against compelled-speech does not require an inquiry into sincerity of the sort required in cases seeking religious exceptions, this is a not-entirely-unrealistic fear.

Cressman himself is apparently fine with taping over the Rain Arrow image, but we can imagine that other people might not be--and might complain that the state is still compelling speech: It requires Oklahomans to speak by either displaying the Rain Arrow image or engaging in the symbolic speech of taping over the Rain Arrow image.

This argument is almost surely a loser as a matter of doctrine. After all, in Wooley v. Maynard, the successful plaintiffs won only a right to tape over "Live Free Or Die" on their plates: They were not entitled to state-issued license plates that didn't display that motto. To be sure, it appears that the Wooleys, like Cressman, didn't object to taping over the objectionable portion of the plate, and thus in a strict sense the issue hasn't been decided by the Supreme Court. But even so, it's hard to imagine the Court holding in favor of the claim imagined here.

Why? Because the case law protects a right against compelled speech, not a right to silence. Consider West Virginia State Board of Educ. v. Barnette. There, the winning plaintiffs won the right not to participate in the Pledge of Allegiance, but exercising that right requires de facto symbolic speech that is at least as conspicuous as taping over Live Free Or Die or the Rain Arrow image. A schoolchild who wants to vindicate his or her Barnette right must either sit or stand silently while the rest of the class recites the Pledge. Silence--in the sense of not taking a position--is not an option.

Note, by contrast, that in the school prayer cases brought under the Establishment Clause, the remedy is a prohibition on organized prayer--a true right to silence. That's what the plaintiff wanted with respect to the Pledge in Elk Grove v. Newdow: He argued that the inclusion of "under God" in the Pledge rendered it a prayer, and thus an improper collective exercise for anyone. His children were already entitled to opt out of the Pledge, per Barnette, but everyone understood that the Barnette right against compelled speech is not a true right to silence. To exercise it in a context in which a public school conducts the Pledge requires conspicuous disagreement.

Does all of this make sense as a normative matter? Isn't there something valuable about a right to silence as such? It depends.

I think that the compelled-speech license plate cases are right to allow the government to put individuals to the difficult choice of either going along and displaying a message with which they disagree (like Live Free Or Die or the potentially pantheistic Rain Arrow Image) or "outing themselves" as dissidents by visibly dissenting (by taping over the disagreeable portions of their plates). The reason is that the Supreme Court was not wrong in Walker v. Texas Division, Sons of Confederate Veteransto recognize that government-issued license plates have a strong government speech component. While I have my concerns with how far the majority in Walker went with that principle, the government element of the mixed government/private speech is considerably stronger in a case like Cressman's, which involves standard-issue plates rather than specialty plates. Protecting not only a right against compelled speech but also a putative right to silence by forbidding the government from putting its motto or logo on any plates strikes me as excessive. It's perhaps regrettable that to avoid compelled speech, people must sometimes dissent publicly, but at least for adults, the First Amendment sometimes demands a little courage.

The argument for an actual right to silence is considerably stronger in a case like Barnette because the recitation of the Pledge cannot plausibly be described as government speech. So what justifies putting vulnerable schoolchildren to the difficult choice of either reciting an affirmation with which they (and/or their parents) disagree or risking the disapproving stares or worse that can come from visibly dissenting? In my view, nothing. The state has an interest in instilling patriotic values in the young, but if I were writing on a clean slate, I would hesitate to say that it may pursue that interest through indoctrination, even when children are formally given a choice whether to participate in the collective affirmation.

Tuesday, January 19, 2016

In my Dorf on Law post last Tuesday, I questioned the conventional wisdom among left-leaning legal strategists who frequently express concern about moving "too far, too soon" in trying to achieve progressive social change. That concern is most frequently offered in resistance to bringing legal challenges on issues that are presumed to be somehow unripe in the minds of the public and/or the judiciary, such that (the logic goes) it is in various ways the wiser course to take a go-slow -- or simply a "maybe later, if we're lucky" -- approach. As I noted in that post, I will write a post this summer in which I investigate how this logic applies to the question of animal rights. Here, I want to discuss the relevant issues in a broader sense.

As I acknowledged in last Tuesday's post, and as I will explain in more detail below, there is an undeniable logic to the idea that rash attempts to achieve social change in an unwelcoming environment can be counterproductive. My ultimate point, however, was not that this logic is wrong, but simply that the go-to example to which cautious liberals usually point actually does not work. Progress on abortion rights was almost certainly not, contrary to the views of Justice Ginsburg and others, ultimately harmed by Roe v. Wade. As I noted, the claim that the anti-abortion movement was created and/or energized by Roe is quite difficult to square with history, and a counterfactual history in which religious conservatives somehow fail to organize to oppose pro-choice legislation at the state level is rather implausible. (Readers should also re-read the Verdict column by Professor Dorf that I discuss in that post.)

People who invoked the Roe example to counsel patience on same-sex marriage thought that the courts (and, just as importantly, the country) could not accept gay marriage so soon. Winning, they said, would ultimately result in avoidable setbacks. Such warnings have turned out to be spectacularly wrong. The Court's predictable 5-4 decision was preceded by nearly unanimous agreement among district and appellate courts, and the public's rapid acceptance of the reality of SSM has been so complete that attempts by people like Mike Huckabee and Ted Cruz to stir up anti-gay backlash have been notably unsuccessful. Even in the Republican presidential campaign, where appealing to the most conservative base voters is essential, SSM is at best an afterthought.

I thus concluded that, although advocates of the go-slow approach might well be right at any given moment on any given issue, they need a new poster child. In addition to making a logical argument that the public is not yet ready for rapid change on Issue A at Time X, it would be helpful to say, "And remember when we foolishly tried to move forward on Issue B? Let's avoid that mistake this time." Essentially, I asked last Tuesday what that real-world cautionary tale might be, given that Roe does not actually fit the bill and Obergefell seems to have turned out so well. Logic is great, but there is almost always a quite plausible logical chain that can lead to the opposite strategic conclusion. Vivid examples matter.

This is a worthwhile discussion, because it is indeed important not to become overconfident simply because risky strategies sometimes pay off. An economic historian once pointed out to me that the Roman Catholic Church and most Protestant denominations agree that their parishioners should be discouraged from gambling, but their reasons differ. For Catholics, he said, the worry is, "What if they lose? The families will starve, and social ruin will follow." For Protestants, on the other hand, the worry is, "What if they win? They will learn the wrong lesson and come to believe that hard work is not necessary, and social ruin will follow." These and related concerns, I think, bear on the strategic questions that I am discussing here.

The Ginsburg critique of Roe is essentially that this is a case where her side won when it would have been better for them to lose -- or, more to the point, not to have tried at all. She claimed that this was the lesson that SSM proponents failed to understand, and that a win there was likely to lead ultimately to setbacks, compared to the go-slow strategy.

A commenter on last Tuesday's post anticipated an important point here by noting that the ex ante concern about the cases that became Obergefell was not just that the good guys might win and suffer backlash, but also that they might lose. And what is so bad about losing, in the larger strategic sense? The idea is apparently that a loss becomes encrusted in a way that makes matters actually worse for future otherwise-meritorious cases, and that it can take a long time to get the Supreme Court to revisit even a terrible decision. Bowers v. Hardwick seems relevant here, although it is arguable that that case did not actually prevent good things from happening prior to its being overruled nearly three decades later. I suspect that Bowers did, in fact, come with such a cost, although it is hard to point to anything dramatic that likely would have happened if that case had never reached the Court.

In any event, consider how the go-slow logic would have worked if conservatives had thought in these terms about the two anti-Affordable Care Act cases of the last few years, NFIB v. Sebelius (2012) and King v. Burwell (2015). On both cases, the go-slow approach would have said that the risks of losing were quite high. The Commerce Clause-related argument that the government cannot force people to buy things (the so-called Broccoli Argument) was ex ante a joke. People reasonably imagined that the case might go 8-1 against the conservatives, if all of the justices had remained true to their previous writings. That case appeared, even to many conservative commentators, to be a fool's errand.

Instead, that issue went 5-4 in favor of the conservatives, with even Kennedy joining in a wholesale conservative rewrite of the Commerce Clause. Moreover, they even managed to get two of the liberalish justices to join in the part of the opinion that allowed state governments to opt out of the Medicaid expansion.

As with Obergefell, however, an equally important question is whether the conservatives simply had good luck, winning a case that they had no reasonable expectation that they would win. We all know that some Hail Mary passes are completed, but that does not make it wise to throw caution to the wind on every play. What is the downside of losing, especially given that the conservatives actually did lose the overall constitutional challenge? Did this set back the conservative movement, or in any way make it more difficult to advance their other strategies in the future?

If it did, then King v. Burwell never would have seen the light of day. Only three years after a crushing loss, the ACA was back at the Court, this time based on an even flimsier argument. The bizarre statutory claim that the ACA was self-negating lost 6-3, allowing the ACA to continue to succeed (even beyond the expectations of its proponents). And the downside, from the conservative standpoint? Other than losing that case, it is difficult to see what they lost in any larger sense. In particular, nothing appears to have become encrusted in a way that makes future victories less likely for conservatives.

Of course, these two examples -- one a loss containing two important wins on sub-issues and the other a humiliating defeat, but neither of which seems to have any strategic downside for the losing activists -- cannot prove that the go-slow approach is never right. To be clear, I continue to think that it is quite reasonable to fear moving too far, too soon. The question that I find surprisingly difficult to answer is why I find that logical argument so plausible, given how difficult it is to think of even one dramatic example to which everyone can point.

Or, to put it slightly differently, imagine that the Roe example actually worked in the way that Justice Ginsburg said it works. At the very least, the onus would then be on the aggressive lawyers in any other context to say, "Yes, bad things happened because of the overeager lawyers in that earlier case. But this case will be different." Instead, I think the ambitious we-can-change-the-world-now lawyers are in a position where they can say, "When did a winning a lawsuit make us worse off in the long run, and when did losing a lawsuit do irreversible damage?"

Again, I am not saying that there are no answers to those questions, but given that the voices of caution take their side to be obviously right, one would think that they would already have a long list of examples, and at least one example that everyone acknowledges to be undeniable and game-changing. Lacking that, two possibilities emerge: (1) There really is not much of a downside to winning or losing a case that was arguably brought too soon, or (2) Impetuous lawyers are going to make big mistakes in the future, because they will think that being on a winning streak is the same thing as being invincible. If (2) is right, I hope that we can come up with a more convincing argument before it is too late.

Monday, January 18, 2016

By Michael Dorf
In honor of Martin Luther King, Jr.'s birthday, I want to say a few words about speech making. I recently listened to part of a podcast in which someone* made the following observations: MLK was one of the greatest, perhaps the greatest, speech maker in our nation's history. He was clearly an extraordinarily gifted public speaker. And yet if you invited someone to a dinner party and that person proceeded to orate in the way that MLK did in his public speeches, you would correctly judge the person a lunatic. The takeaway, with which I agree, is that there is a difference between a powerful speech in an oratorical style and a conversation.

That's not to say that one cannot be a powerful public speaker while speaking in a conversational style. Indeed, there are contexts in which a conversational style--even in public--is much preferred. I happen to work in two professions--academia and as a lawyer--in which launching into a speech of the form "I have a dream" or "Ask not what your country can do for you" would mark me as almost as much of a lunatic as the dinner companion who spoke that way in your small dining room. We praise law students in moot courts for a relaxed, conversational tone. Even on more "speechifying" occasions, public speaking can be quite successful if conversational. That is the appeal of the fireside chat, for example.

Indeed, to my ear at least, speeches that are not conversational are often suspect. They raise the suspicion that the speaker is using bombast in place of logic. There can frequently also be more than a hint of inauthenticity.

To give one admittedly extreme example, of the current batch of Republican presidential candidates, Senator Ted Cruz is probably the most polished public speaker, with Senator Marco Rubio a fairly close second, and former Governor Mike Huckabee a respectable third. As an oral advocate in the Supreme Court, Cruz was extremely effective--conversational, yet forceful. Listen to his argument in Medellin v. Texasif you want an example. One can disagree with his legal position (as I do), but still recognize that he did a fine job advocating for it. And yet Cruz in oratorical mode is insufferable. Even though Cruz is genuinely on the far right of his party, Rubio is not wrong to attack him as an opportunist, because Cruz's arrogant smarmy melodrama drips insincerity.

Or maybe it's the opposite? Maybe in speechifying but somehow not in lawyering, Cruz's true personality comes out. The bipartisan consensus of people who have worked with Cruz is that he is loathsome, and that's almost certainly based mostly on his interpersonal interactions in multiple settings; you don't hate someone who is otherwise likable or decent simply because he's an annoying public speaker. When he's just talking (as in his oral arguments), Cruz manages to disguise his loathsomeness. Maybe there's something about speaking grandly, however, that brings it out.

Now let's think about the flipside. Are there speakers who can give a great speech but have difficulty connecting when going for a more conversational tone? President Obama appears to be an example. While his political rhetoric on the stump certainly never reached MLK levels of inspiration, by contemporary standards, it's quite good. Yet in between grand speeches, his delivery somehow manages to be simultaneously choppy and soporific. The Andy Borowitz 2012 headline "Democrats to Employ Man Who Played Obama in 2008" worked because of the contrast between Obama's exciting speech making on the stump and his somewhat languorous affect on other occasions. (Only "somewhat." The contemporary prize for somnambulism surely goes to Dr. Ben Carson.)

On this day when many people will listen to King's "I Have a Dream" speech and too few people will listen to his other speeches (such as this one), I conclude with two cheers for great political oratory. MLK-level oratory works because it speaks to the heart as much as the mind--or to be more neurochemically accurate, because the emotional centers of the brain are connected to the ones that process logic. As Justice Louis Brandeis said nearly a century ago in his dissent in Gitlow v. New York, "eloquence may set fire to reason."

I give only two cheers because of the power of demagogues to use their eloquence to swamp or distort reason--to inspire evil as well as good.

But in our cynical age and society, that risk seems relatively small. The most powerful demagogue on the currenrt scene--Donald Trump--is hardly eloquent. Quite the opposite: His supporters mistake his crude lies for speaking truth to power partly because he lacks any oratorical gifts. Thus they think he tells it like it is. Meanwhile, from a very different direction, Senator Bernie Sanders taps into the same American tradition of venerating plainspokenness. On balance, we could use more eloquence, not less. Just don't expect the likes of MLK to come around anytime soon.

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* The someone was Sam Harris. I'm not a regular listener to his podcast, but someone directed me to it because of something Harris said about veganism, and so I came across his point about MLK.

Friday, January 15, 2016

In my column for this week, I discuss the rule against character evidence and how it might be applied to Bill Cosby's case. The rule in question, Rule 404 (under Pennsylvania state law), provides that evidence of a person's character may not be introduced in evidence to show that the person acted on a particular occasion in a manner that corresponded with that character. An example would be in a murder trial, one could not offer evidence that the defendant had committed several murders in the past, as tending to make it more likely that he committed the one of which he now stands accused. The character rule has a caveat, however, that permits the introduction of prior bad acts evidence if offered to show something other than character (and in a criminal case, the probative value outweighs any unfair prejudice). A non-exhaustive list of examples includes proving identity or absence of mistake.

As I explain in the column, fans of the general rule would tend to want to limit application of the caveats and would accordingly wish to exclude evidence of Cosby's behavior in prior sexual assault situations (i.e., giving women pills and drinks and then assaulting them in their vulnerable state). I conclude, with some ambivalence, that the evidence of Cosby's prior conduct ought to be admitted against him to prove an M.O. (modus operandi) by which he engages with women he intends to assault.

In this post, I want to talk about an oddity in the rule against character evidence. One of the exceptions to the rule applies to witnesses. That is, it is permissible to introduce evidence of a witness's character (including prior convictions) to show that the witness is characteroloigcally a liar and is therefore more likely to have lied on a particular occasion (such as when he took the stand and said that he is innocent). This is strange for a number of reasons highlighted years ago by the late Professor Richard Uviller. These are Uviller's insights, but I find them so compelling that I thought it worthwhile to share them in this blog post.

Consider first the fact that when someone is accused of a crime, one of the most helpful sorts of evidence we might want to see--to determine guilt or innocence--is what sort of history this person has. Has he done this thing he stands accused of doing before, or is this the first time, according to the allegations? This inference, however, is impermissible because we worry that juries will overvalue evidence of past misconduct and have a hard time neutrally assessing guilt in this case. What juries may consider, though, is prior convictions as evidence that he is a liar and is therefore lying when he takes the stand and says he is innocent. As a result, a criminal defendant with prior convictions (even for crimes having little bearing on sincerity) will be highly motivated to stay off the witness stand and thereby ensure that such prior convictions stay out.

What Uviller points out is that people tend not to have a clear character for telling the truth or for lying. Furthermore, and more importantly, the motivation for a criminal defendant is to say "I am innocent" regardless of whether he is guilty or innocent and regardless of whether he is a liar or a truth-teller. That motivation (to exonerate himself) overwhelms the role of any character he has for telling the truth or lying. As a result, a defendant on the witness stand -- even if he is a known liar -- will tell the truth and say he is innocent if he is in fact innocent. And a known truth-teller, who just about never lies, will say he is innocent even if he is in fact guilty. The incentives simply line up that way, so it is not informative to learn that the criminal defendant witness is a liar (unless, of course, he is charged with committing perjury), and most prior crimes will say more about his criminal propensities than his lying propensities.

I proposed once that we could solve a piece of this problem by prohibiting testimony by criminal defendants in their own cases. Once prohibited, no one would take the defendant's silence as evidence of guilt (and though the judge currently tells the jury not to count silence against the defendant, this is a very difficult instruction to follow), and the jury would not be asked to consider prior convictions as proof of veracity (of which they are slim proof indeed). There is something seemingly outrageous about keeping criminal defendants off the witness stand, but at the moment we really are keeping many off the stand anyway by threatening the introduction of prior convictions if they testify. Perhaps having to testify in one's own defense is more of a burden than a privilege, given the admissibility of prior convictions. Under our existing approach, only defendants with no prior convictions can confidently take the witness stand and tell the truth or lie, as their motive to say "I'm innocent" tells them.

Juries are far savvier, I think, than we give them credit for. I once asked a friend who was on jury duty whether the defendant testified in the case on which she had sat. She said no. I asked her why she thought he didn't testify, and she said that she and the other jurors just assumed that he had a prior record. Neither she nor the others on her panel were attorneys, to my knowledge. So if she and others knew why the defendant didn't testify, then it is likely the case that other juries do too.

So what does any of this have to do with Bill Cosby? Well, he does not have prior convictions (that I know of) and certainly not priors for sexual assault. On the other hand, he has a large number of women who say that they were sexually assaulted by him. As I explain in my column, their testimony cannot be admitted for the proposition that "he has sexually assaulted before, so he's more likely to have sexually assaulted in this case," though this would be permissible in a federal trial (under Federal Rules 413-415). For Bill Cosby, the question is whether his reported tendency to intoxicate his victims before sexually assaulting them fits within the caveat that Pennsylvania Rule 404 offers (for using prior bad acts to show something other than character). I suggest in my column that it does. If it does not, however, I will be curious to know something about the people selected for his jury who have no idea that many women have accused Cosby of sexual assault, who also know nothing about the alcohol and pills he allegedly used to make them more vulnerable. Perhaps the application of Pennsylvania Rule 404 in this case is largely moot because of what the jury pool almost certainly already knows.

It has long been obvious that, at least in the United States (and perhaps elsewhere, although I simply do not know), political life cycles tend to run from liberal to conservative. There are plenty of counter-examples, of course, but the basic idea is that idealism is a luxury in which a person can indulge when he is willing to crash on a friend's floor for the weekend and his biggest concern is where the next party is. As time passes, however, responsibilities like mortgages and child-rearing (and a growing sense of being entitled to live in comfort) create fears about security of all sorts, which conservative politicians then exploit. A New Yorker cartoon captured this notion decades ago, showing a grandfatherly man sitting in a well-appointed home, sipping sherry and saying to a worried-looking young boy, "Don't worry, I started out liberal, too."

In my column today, I take a completely different tack. Drawing on my writings about intergenerational justice, I point out that Sanders (and, to a lesser extent, Clinton and O'Malley) is appealing not to youthful idealism but to the long-term self-interest of younger voters. With every Republican constantly repeating nonsense about preventing the national debt from being a burden on "our children and grandchildren," our children and grandchildren know that there are more important issues on which their futures actually hinge. The most obvious is climate change, but I also note that Sanders's focus on income inequality -- and, perhaps more importantly, his concern about the threat to our democracy from big-money interests -- would have to resonate with any 20- or 30-something who wonders what kind of world she will inhabit in future decades.

The mirror-image problem, for the Republicans, is that their "next generation candidates" are Ted Cruz and Marco Rubio. Republican insiders' efforts to paint Rubio as a moderate are almost pathetic in their insincerity. As I will document in a Verdict column in the near future, his record is as hard-right as anything the Republicans have to offer. And it appears that younger people are not being fooled, but one never knows, given the ability of political consultants to hoodwink the media into misusing the word "moderate." (Aside: Speaking of fake moderates, I might be the only person outside of Kennebunkport who thinks that the Republicans will end up nominating Jeb Bush this year. I will explain that view in a future post here on Dorf on Law.)

As I note in today's column, this generational mismatch is somewhat novel. We typically think of each generation's interests being carried forward by an emerging political star from that generation. Teddy Roosevelt, JFK, and Bill Clinton represented clear generational breaking points, younger men who shook up the political establishment by advancing the interests of the next generation. In Clinton's case, I continue to think that he actually did not so much advance the interests of a new generation as co-opt its progressive ideals into a profoundly center-right administration. Even so, there is always the sense that the next generation's moment has never really come until they have elected one of their own to be president.

If Bernie Sanders or Hillary Clinton becomes the next president, it will be largely because younger people and women turn out in large enough numbers to swamp the old-white-male-nativist Republican voters. Even so, that will still leave us with a puzzle. If younger voters are smart enough to know that their best choice in 2016 is to elect their enlightened great-uncle or their grandmother's brilliant friend, they will have done the best they can under the circumstances to protect their long-term interests in economic, environmental, racial, and social justice. I am certainly hoping for such an outcome. Such an outcome would also mean that younger voters saw through and rejected the hate-mongering Cruz and the dishonest Rubio, understanding that, "Vote for me, I'm younger!" is not a persuasive argument.

But what would happen next? In the last Democratic debate, 52-year-old Martin O'Malley tried to pander on this issue, interrupting Sanders's answer to a question about foreign policy by saying that he had "a different generation's perspective on this." He was rightly booed, but this was hardly the first time he has tried to play that card. As clumsy as O'Malley has been about this topic, the larger issue is that Sanders will be 78 in 2020 and Clinton will be 72. If Democrats lose in 2016, who can credibly speak for the next generation and be politically viable?

Again, it is not necessary that the best spokesperson for a generation actually be one of them. One could imagine someone currently in her late 50's or early 60's being the next big thing for the Millennials-and-younger crowd, if such a politician actually were to speak for them. (Elizabeth Warren is the obvious candidate here. And although I find him problematic in many ways, the 58-year-old Andrew Cuomo could also fit this bill.) Even so, we know that the Republican elites who are pulling for Rubio are in part counting on the ability to fool just enough younger voters with a generational appeal. As I noted above, because of the superficiality of political campaigns, that could work just well enough to elect a Republican. But even if it does not, it would be helpful if Democrats could soon find someone who is a Millennial both by outlook and by age.

The Democrats have been rightly worried by their "short bench" of younger officeholders. There are actually some good women in the Senate who stepped aside this year in favor of Hillary Clinton (McCaskill, Klobuchar), but they are still Baby Boomers. Even California AG Kamala Harris, who is a rising star of sorts, has passed her fiftieth birthday. But the Castro brothers (Julian and Joaquin) are 41 years old, Latino, and from Texas. The idea that they or other appealing younger politicians will not emerge strikes me as bizarre. Politics hates a vacuum, and by 2018 or so, no matter who wins the 2016 election, Democrats will have found the proverbial fresh faces. This is especially likely given that experience in public office is now all but optional for presidential contenders.

In any case, this year is a true oddity. The younger generations are being offered false representation by young opportunists who actually represent the politics of the past, while the best policies for the future are on offer from two people who are eligible for full retirement benefits. At some point, post-Boomers will find one or more true leaders. But not this year.

Wednesday, January 13, 2016

by Michael Dorf
In my new Verdict column, I argue that the Supreme Court should grant cert in Cressman v. Thompson, a case in which an Oklahoma man raises a free-speech objection to the standard-issue state license plates. Those plates include an image that he (reasonably) regards as pantheistic, a view he wishes not to express. He cites Wooley v. Maynard for the proposition that he has a constitutional right to tape over the image to vindicate his right against compelled speech. The U.S. Court of Appeals for the 10th Circuit rejected his claim on grounds that I find unpersuasive. Nonetheless, as I explain in the column, there is a risk that a sloppily (or maliciously) written opinion vindicating Cressman's right could jeopardize anti-discrimination law. Accordingly, I urge a view of the right against compelled speech that is broader than the one adopted by the 10th Circuit but nonetheless reasonably cabined.

Here I want to discuss the compelled-speech case already pending before the Supreme Court. On Monday, the Court heard oral argument in Friedrichs v. California Teachers Association. The case presents the question whether to overturn that portion of Abood v. Detroit Bd. of Educ. that permits a state to adopt an "agency shop" (or "closed shop") regime in which public employee unions authorized to act as the sole bargaining agent for members of a collective bargaining unit may charge non-union members their pro-rata share of the costs associated with bargaining.Abood was a compromise. The Court held that charging non-union members for the union's "ideological" activities that are not related to collective bargaining violates the non-union members' right against compelled speech, but the Justices permitted charging non-union members for bargaining activities, even though public employee unions often bargain over matters that are both a matter of ideological contestation and related to employment--such as the provision (or not) of employee health insurance that covers abortion, the role (if any) of the use of student scores on standardized tests in retention and promotion decisions (in cases, like Friedrichs and Abood, which involve teachers' unions), and many other issues.

Charges for bargaining-related costs, notwithstanding their potential ideological content, have been justified on the ground that they are needed to address the problem of free riders: Non-union members of the bargaining unit benefit from the union's bargaining-related activities, and so it is only fair to charge them; indeed, without the obligation to pay their pro-rata share, many employees with or without ideological objections would free ride on the union's bargaining, which in turn would diminish the union's resources, and thus its bargaining strength. That, in turn, would harm all employees. Accordingly, an agency shop limited by the Abood compromise is best understood as a means by which the government helps labor solve a collective action problem.

During the argument in Friedrichs, the four liberalish Justices offered stare decisis as a ground for retaining the Abood compromise. But the five conservative Justices appeared unmoved. They seem ready to make good on hints they dropped in 2012 in Knox v. SEIUand again in 2014 in Harris v. Quinn,and rule that the free-rider justification does not suffice to override the non-union members' right against compelled speech.

Much of the disagreement among the justices concerned which side should bear the burden of persuasion. According to the conservatives: compelled speech is a serious infringement on the rights of the non-union members; the burden of proof rests with the state as the infringer of those rights; and the state has not shown that the free-rider problem is sufficiently serious to warrant agency shop rules. According to the liberals: Abood has been on the books for four decades; numerous collective bargaining agreements have been struck in reliance on Abood; and thus the challengers to its doctrine bear the burden of persuading the Court that there is some special reason to overrule it.

The contest over whether public employee unions could adequately perform their collective-bargaining function at one point veered into a hypothetical-but-revealing direction. Justice Sotomayor asked Michael Carvin, the attorney for the plaintiff, whether the state could simply fund the union from tax revenues collected from public employees to ensure that the union had adequate resources to engage in collective bargaining. After some back and forth to clarify what was being asked, Carvin, with support from Justice Alito, resisted the question by noting--correctly--that unions don't want government funding because that would potentially co-opt them and subject them to onerous restrictions.

Fair enough, but that objection really misses the point of Justice Sotomayor's question, which is quite fundamental. The question is this: Why does the Constitution permit the government to tax some group of people and use the proceeds to fund speech with which they disagree, but forbid the government from requiring that those same people give over some of their money to other people who then say things with which some of the first group of people disagree? Even if unions in general don't want to be funded via taxation, the Constitution apparently would permit it. Why the constitutional difference based on the formality of whether the money is temporarily parked in a government bank account?

One answer might be that government speech is categorically different from private speech. But that doesn't get us very far. As I noted in a blog post after the Knox case, government speech is often accomplished via private parties. Suppose the government hires a private advertising firm to design and run a campaign urging minors not to smoke, but leaves the content of the campaign almost entirely up to the advertising firm. There the money is going from taxpayers to a private firm to express messages with which some of the taxpayers disagree (or simply don't want to fund); yet the taxpayers have no free speech right to resist the government speech.

Perhaps there's some mileage to be gained out of the hoary maxim that government may not take property from A and give it to B? But to the extent that this maxim is a constitutional principle, it's the very permissive "public use" requirement of the Takings Clause, and even then, it does not block redistributive taxing and spending, and is not ultimately about speech at all.

Another possibility, I suppose, is that where true government speech is involved, the government controls the speech, but not where it deputizes a union to speak on behalf of the bargaining unit members. Yet the degree of control needed for the government speech doctrine to kick in is minimal, as illustrated by last Term's decision in Walker v. Texas Div., Sons of Confederate Veterans. Government has wide latitude to speak through private parties, and the speech remains government speech even when it exercises minimal control over what those private parties say. So we are left with a puzzle as to why so much should turn on whether: 1) the government by law requires A to give the money to B to speak (which raises constitutional problems of compelled speech) or 2) the government collects the money from A and then hands it over to B to speak (which is permissible government speech or spending).

Finally, in raising this question, I do not mean to pick on the conservatives. I don't think Justice Sotomayor realized it, but the upshot of her suggestion that there is no constitutional difference between the govt taxing A to fund speech by B and the govt making A pay B directly to fund B's speech appears to be that Abood is wrong on the other half of its compromise, i.e., it's too restrictive of agency shops. After all, government speech routinely takes controversial positions on ideologically charged issues that have nothing to do with collective bargaining. If that's allowed, and if there's no difference between money that passes through government coffers and money that doesn't, then there should be no constitutional problem with a legal obligation directly to fund speech with which one disagrees even if it is unrelated to collective bargaining.

And maybe there shouldn't be, but if that's the reason to resist overruling Abood, then the case from the liberal side isn't about stare decisis because the principle that going through government coffers doesn't make a difference would requiring the overturning of the part of Abood that held that public employee unions can't charge non-union members of the bargaining unit for their non-bargaining-related activities.